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As filed with the Securities and Exchange Commission on December 18, 1998
Registration No. 333-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
WESTPOINT STEVENS INC.
(Exact name of registrant as specified in its charter)
Delaware 36-3498354
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification No.)
organization)
507 West Tenth Street
West Point, Georgia 31833
(706) 645-4000
(Address and telephone number of
Registrant's principal executive offices)
RETIREMENT SAVINGS VALUE PLAN
FOR EMPLOYEES OF WESTPOINT STEVENS INC.
RETIREMENT SAVINGS VALUE PLAN
FOR EMPLOYEES OF LIEBHARDT INC.
(Full title of the plans)
===================
M. CLAYTON HUMPHRIES, JR.
GENERAL COUNSEL
WESTPOINT STEVENS INC.
507 WEST TENTH STREET
WEST POINT, GEORGIA 31833
(706) 645-4000
(Name, address and telephone number of agent for service)
Copy of communications to:
Howard Chatzinoff, Esq.
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
(212) 310-8000
CALCULATION OF REGISTRATION FEE
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==========================================================================================================================
Proposed Proposed
Maximum Maximum
Title of Amount Offering Aggregate Amount of
Securities to to be Price Per Offering Registration
of Registered Registered(1) Share(2) Price(2) Fee
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Shares of Common Stock,
par value $.01 per share 1,000,000 shares $27.03125 $27,031,250 $7,515
---------------- --------- ----------- ------
==========================================================================================================================
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(1) This registration statement relates to 900,000 shares of common stock
issuable under the Retirement Savings Value Plan for Employees of WestPoint
Stevens Inc. and 100,000 shares of common stock issuable under the Retirement
Savings Value Plan for Employees of Liebhardt Inc. In addition, pursuant to
Rule 416 under the Securities Act of 1933, this registration statement also
covers an indeterminate amount of interests to be offered or sold pursuant to
the employee benefit plans described herein.
(2) Computed solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933, as amended, based
upon a good faith estimate of the aggregate number of shares of Common Stock of
the Registrant to be purchased pursuant to the plan at the average of the high
and low prices of the Common Stock as reported by the NASDAQ National Market
System, the automated quotation system of the National Association of
Securities Dealers, Inc., on December 15, 1998.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I of this
Registration Statement will be sent or given to employees as specified by Rule
428(b)(1) under the Securities Act of 1933, as amended (the "Securities Act").
Such documents are not required to be and are not filed with the Securities and
Exchange Commission (the "Commission") either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424
under the Securities Act. These documents and the documents incorporated by
reference in this Registration Statement pursuant to Item 3 of Part II of this
Form S-8, taken together, constitute a prospectus that meets the requirements
of Section 10(a) of the Securities Act.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Commission by
WestPoint Stevens Inc. (the "Company") are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997, and the Form 11-K for the Retirement
Savings Value Plan for Employees of WestPoint Stevens Inc. for the fiscal year
ended December 31, 1997.
(b) All other reports filed with the Commission pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") since December 31, 1997, including, without limitation,
the Company's Quarterly Reports on Form 10-Q for the fiscal quarters ended
March 31, 1998, June 30, 1998 and September 30, 1998.
(c) The description of the Company's Common Stock
contained in the Company's Registration Statement on Form 10 filed with the
Commission pursuant to Section 12 of the Exchange Act on July 1, 1993, the
Amendment to the Registration Statement on Form 10/A filed on January 6, 1994
and the Current Report on Form 8-K filed on May 19, 1995, including any other
amendment or report filed for the purpose of updating such description.
All documents subsequently filed by the Company or the Plans
with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act, prior to the filing of a post-effective amendment to this
Registration Statement which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
(1) Section 145 of Delaware General Corporation Law.
Section 145 of the Delaware General Corporation Law ("DGCL") provides that a
corporation may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation) by reason of the fact
that he is or was a director, officer, employee, or agent of the corporation,
or is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit, or proceeding if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction or upon plea of nolo contendere or its equivalent, shall not, in and
of itself, create a presumption that his conduct was unlawful.
Section 145 of the DGCL also provides that a corporation may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending, or completed action or suit by or in the right of
the corporation to procure a judgment in its favor by reason of the fact that
he is or was a director,
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officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation and except that no indemnification shall
be made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the corporation unless and only to the
extent that the Court of Chancery of Delaware or the court in which such action
or suit was brought shall determine upon adjudication that, despite the
adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery of Delaware or such other court shall deem proper.
To the extent that a director, officer, employee or agent of
the corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to above, or in defense of any claim,
issue or matter therein, such person shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by such person in
connection therewith.
Any such indemnification (unless ordered by a court) shall be
made by the corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee or agent
is proper in the circumstances because such person has met the applicable
standard of conduct set forth above. Such determination shall be made:
(i) by the Board of Directors by a majority vote of a
quorum consisting of directors who were not parties to such action,
suit or proceeding or
(ii) if such a quorum is not obtainable, or, even if
obtainable a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion; or
(iii) by the stockholders.
Section 145 of the DGCL permits a Delaware business
corporation to purchase and maintain insurance on behalf of any person who is
or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against such person and incurred by
him in any such capacity, or arising out of his status as such, whether or not
the corporation would have the power to indemnify such person.
(2) By-law Provisions on Indemnity. Article V of the
Amended and Restated By-laws of the Company, as the same may be amended from
time to time (the "By-laws"), sets forth the extent to which the Company's
directors and officers may be indemnified by the Company against liabilities
which they may incur while serving in such capacity. Article V generally
provides that the Company shall indemnify the directors and officers of the
Company who are or were a party to any threatened, pending, or contemplated
action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he is or was a director or officer of
the Company or of another corporation, partnership, joint venture, employee
benefit plan, trust or other enterprise, or by reason of any action alleged to
have been taken or omitted in such capacity, against expenses (including
attorneys' fees and disbursements), judgments, fines, and amounts paid in
settlement actually and reasonably incurred in connection therewith, provided
that the applicable standard of conduct set forth in Section 145 of DGCL was
met and, provided further, that such indemnification shall be limited to
expenses (including attorneys' fees and disbursements) actually and reasonably
incurred in the case of an action or suit by or in the right of the Company to
procure a judgment in its favor. Subject to the procedures for indemnification
of directors and officers set forth in the By-laws, the indemnification of the
Company's directors and officers provided for therein is in all other respects
substantially similar to that provided for in Section 145 of the DGCL. Any such
indemnification shall continue as to a person who has ceased to be a director
or officer of the Company and shall insure to the benefit of the heirs,
executors, and administrators of such person.
(3) Indemnification Agreements. In addition, each of the
directors and the executive officers of the Company are entitled to
indemnification from the Company pursuant to separate agreements (the
"Indemnification Agreements") between the Company and such persons.
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The Company has in effect insurance policies covering all of
the Company's directors and officers in certain instances where by law they may
not be indemnified by the Company.
The above discussion of the By-Laws of the Company and of the
Indemnification Agreements and of Section 145 of the Delaware Code is not
intended to be exhaustive and is qualified in its entirety by such By-Laws,
Indemnification Agreements and the Delaware Code.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons controlling
the Company as disclosed above, the Company has been informed that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4(a) - Restated Certificate of Incorporation of
the Company, filed as Exhibit 3(a) to the
Company's Registration Statement on Form
S-4 (Commission File No. 333-59817) filed
on July 24, 1998 (incorporated by
reference).
4(b) - Amended and Restated By-Laws of the
Company, as amended and restated, filed as
Exhibit 3.4 to the Company's Post-Effective
Amendment No. 1 to the Registration
Statement on Form S-1 (Commission File No.
33-77726), filed on May 19, 1994
(incorporated by reference).
5 - Opinion and Consent of Counsel of WestPoint
Stevens Inc.
23(a) - Consent of Ernst & Young, LLP.
23(b) - Consent of Counsel of WestPoint Stevens
Inc. (Included in Exhibit 5)
24 - Power of Attorney (included as part of this
Registration Statement).
The Registrant hereby undertakes to submit the Plan in a
timely manner to the Internal Revenue Service (the "IRS") and will make all
changes required by the IRS in order to qualify the plan.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the Registration Statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the Registration
Statement;
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the Registration
Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraph (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a
post-effective amendment by the foregoing paragraphs is
contained
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in periodic reports filed by the Company pursuant to Section
13 or Section 15(d) of the Exchange Act that are incorporated
by reference in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective
amendment shall be deemed to be a new Registration
Statement relating to the securities offered
therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide
offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities
Act, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall
be deemed to be a new Registration Statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed
in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized in the City of Atlanta, State of Georgia, on this 18th day of
December, 1998.
WestPoint Stevens Inc.
(REGISTRANT)
By: /s/ Holcombe T. Green, Jr.
----------------------------------
Holcombe T. Green, Jr.
Chairman of the Board and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose
signature appears below constitutes and appoints Morgan M. Schuessler and
Christopher N. Zodrow and each of them, his/her true and lawful
attorney-in-fact and agent with full power of substitution and resubstitution,
for him/her and in his/her name, place and stead, in any and all capacities, to
sign this Registration Statement and any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same
with all exhibits thereto, and all documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his substitute, or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
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By /s/ Holcombe T. Green, Jr. By /s/ Morgan M. Schuessler
------------------------------------------ ------------------------------------------
Holcombe T. Green, Jr. Morgan M. Schuessler
Chairman of the Board and Chief Executive Executive Vice President/Finance
Officer (principal executive officer) Chief Financial Officer
(principal financial officer)
December 18, 1998 December 18, 1998
By /s/ Joseph L. Jennings, Jr. By /s/ J. Nelson Griffith
------------------------------------------ ------------------------------------------
Joseph L. Jennings, Jr. J. Nelson Griffith
Vice Chairman of the Board Controller (principal accounting officer)
December 18, 1998 December 18, 1998
</TABLE>
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<TABLE>
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By /s/ Hugh M. Chapman By /s/ M. Katherine Dwyer
------------------------------------------ ----------------------------------------------
Hugh M. Chapman M. Katherine Dwyer
Director Director
December 18, 1998 December 18, 1998
By /s/ John G. Hudson By /s/ Charles W. McCall
------------------------------------------ ----------------------------------------------
John G. Hudson Charles W. McCall
Director Director
December 18, 1998 December 18, 1998
By /s/ Gerald B. Mitchell By /s/ Phillip Siegel
------------------------------------------ ----------------------------------------------
Gerald B. Mitchell Phillip Siegel
Director Director
December 18, 1998 December 18, 1998
By /s/ John F. Sorte By /s/ Thomas J. Ward
------------------------------------------ ----------------------------------------------
John F. Sorte Thomas J. Ward
Director Director
December 18, 1998 December 18, 1998
</TABLE>
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Management Pension Committee, which administers the Retirement Savings Value
Plan for Employees of WestPoint Stevens Inc. and the Retirement Savings Value
Plan for Employees of Liebhardt Inc., has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of New York, State of New York, on this 18th day of
December, 1998.
Retirement Savings Value Plan for Employees of
WestPoint Stevens Inc.
By: /s John F. Sorte
---------------------------------------------
Name: John F. Sorte
Title: Chairman of the Management Pension
Committee of WestPoint Stevens Inc.
Retirement Savings Value Plan
for Employees of Liebhardt Inc.
By: /s/ John F. Sorte
---------------------------------------------
Name: John F. Sorte
Title: Chairman of the Management Pension
Committee of WestPoint Stevens Inc.
<PAGE> 10
EXHIBIT INDEX
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EXHIBIT NO. DESCRIPTION PAGE NO.
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<S> <C> <C>
4(a) - Restated Certificate of Incorporation of the Company, filed as
Exhibit 3(a) to the Company's Registration Statement on Form
S-4 (Commission File No. 333-59817) filed on July 24, 1998
(incorporated by reference).
4(b) - Amended and Restated By-Laws of the Company, as amended and
restated, filed as Exhibit 3.4 to the Company's
Post-Effective Amendment No. 1 to the Registration Statement
on Form S-1 (Commission File No. 33-77726), filed on May 19,
1994 (incorporated by reference).
5 - Opinion and Consent of Counsel of WestPoint Stevens Inc.
23(a) - Consent of Ernst & Young, LLP.
23(b) - Consent of Counsel of WestPoint Stevens Inc. (Included in
Exhibit 5)
24 - Power of Attorney (included as part of this Registration
Statement).
</TABLE>
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EXHIBIT 5
WESTPOINT STEVENS
CHRISTOPHER N. ZODROW Direct Line: 706 645-4112
Vice President and Secretary Fax: 706 645-4396
December 18, 1998
WestPoint Stevens Inc.
507 West Tenth Street
West Point, Georgia 31833
Gentlemen:
I have acted as counsel to WestPoint Stevens Inc., a Delaware
corporation (the "Company"), in connection with the preparation and filing by
the Company with the Securities and Exchange Commission of a Registration
Statement on Form S-8 (the "Registration Statement") under the Securities Act
of 1933, as amended, with respect to the registration of up to one million
shares of the Company's common stock, par value $0.01 per share ("Common
Stock"), pursuant to the Retirement Savings Value Plan for Employees of
WestPoint Stevens Inc. and the Retirement Savings Value Plan for Employees of
Liebhardt Inc. (collectively the "Plans"). Terms defined in the Registration
Statement and not otherwise defined herein are used herein with the meanings as
so defined.
In so acting, I have examined originals or copies, certified or
otherwise identified to my satisfaction, of the Registration Statement and such
corporate records, agreements, documents and other instruments, and such
certificates or comparable documents of public officials and of officers and
representatives of the Company as I have deemed relevant and necessary as a
basis for the opinion hereinafter set forth. I have also made such inquiries of
such officers and representatives as I have deemed relevant and necessary as a
basis for the opinion hereinafter set forth.
In such examination, I have assumed the genuineness of all signatures,
the authenticity of all documents submitted to me as originals, the conformity
to original documents of documents submitted to me as certified or photostatic
copies and the authenticity of the originals of such latter documents.
Based on the foregoing and subject to the qualifications stated
herein, I am of the opinion that the shares of Common Stock initially issuable
pursuant to the Plans will be, when issued and paid for in accordance with the
Plans, validly issued, fully paid and nonassessable.
The opinion herein is limited to the corporate laws of the State of
Delaware and I express no opinion as to the effect on the matters covered by
this opinion of the laws of any other jurisdiction.
I consent to the use of this opinion as an exhibit to the Registration
Statement. I also consent to any and all references to myself in the Prospectus
which is part of said Registration Statement. I further consent to the use of
this opinion as an exhibit to applications to securities commissioners of
various states of the United States for registration or qualification of the
Common Stock under the securities (or "blue") laws of such states.
<PAGE> 2
WestPoint Stevens Inc.
Page 2
December 18, 1998
This opinion is rendered solely for your benefit in connection with
the transactions described above. This opinion may not be used or relied upon
by any other person and may not be disclosed, quoted, filed with a governmental
agency or otherwise referred to without my prior written consent except as
noted above.
Very truly yours,
/s/ Christopher N. Zodrow
----------------------------
Christopher N. Zodrow
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Exhibit 23(a)
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) of WestPoint Stevens Inc. pertaining to the Retirement Savings Value Plan
for Employees of WestPoint Stevens Inc. and the Retirement Savings Value Plan
for Employees of Liebhardt Inc. of our reports (i) dated February 5, 1998, with
respect to the consolidated financial statements and schedule of WestPoint
Stevens Inc. included in its Annual Report (Form 10-K) and (ii) dated June 11,
1998, with respect to the financial statements and schedules of the WestPoint
Stevens Inc. Retirement Savings Value Plan included in the Plan's Annual Report
(Form 11-K), both for the year ended December 31, 1997, filed with the
Securities and Exchange Commission.
ERNST & YOUNG, LLP
Columbus, Ga.
December 18, 1998
